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Right to Education

Scope and Implementation

General Comment 13 on the right to education


(Art. 13 of the International Covenant on
Economic, Social and Cultural Rights)

Economic and Social


Council
FOREWORD

Achieving the right to education for all is one of the biggest challenges of our times. The
second International Development Goal addresses this challenge: universalizing primary
education in all countries by 2015. This is also one of the main objectives set at the
World Education Forum (April 2000), where the right to basic education for all was
reaffirmed as a fundamental human right.

Article 13 of the International Covenant on Economic, Social and Cultural Rights covers
this right most comprehensively. The provisions it contains were drafted at the suggestion
of UNESCO’s Director-General. The right to education is also recognized in other
international and regional instruments. A number of instruments elaborated by UNESCO
relating to the right to education give expression to this right in its different aspects.

The fundamental question is how the obligations relating to the right to education
undertaken by Member States under international and regional instruments are
incorporated into national legal systems? This is all the more important for achieving the
Dakar goals, in keeping with the commitments made by Governments for providing
education for all, especially free and compulsory quality basic education. But in spite of
such legal obligations and political commitments, millions of children still remain
deprived of educational opportunities, many of them on account of poverty. They must
have access to basic education as of right, in particular to primary education which must
be free. Poverty must not be a hindrance and the claim by the poor to such education
must be recognized and reinforced.

The responsibility devolves upon Governments to ensure that political commitments


undertaken at the World Education Forum are translated into national laws and policies.
As a result, the constitutional and legislative foundation of the right to education assume
added significance, taking fully into account the legal implications of the Dakar
Framework for Action. The Discussion on the Right to Education and Follow-up to the
World Education Forum (Dakar, April 2000) organized by the United Nations Committee
on Economic, Social and Cultural Rights (UNCESCR), in co-operation with UNESCO
on 14 May 2002, clearly showed how crucial it was to introduce constitutional provisions
on the right to education as well as appropriate enabling legislation so that the State
obligations under the relevant international conventions are incorporated into the
domestic legal order.

In that spirit, it is crucial to give impetus to normative action so as to ensure more


effective implementation of instruments relating to the right to education, especially those
of UNESCO, on the one hand; and to accord due place to the right to basic education for
all in national legal system, on the other. For this purpose, the obligations undertaken by
States and their implications for the Government action at national level must be fully
recognized and appreciated. Moreover, Member States must be guided in this action for
reporting to the monitoring bodies.
2

The General Comment No. 13 on Article 13 of the International Covenant on Economic,


Social and Cultural Rights serves such a purpose.1 It was elaborated by the United
Nations Committee on Economic, Social and Cultural Rights (UNCESCR), in
collaboration with UNESCO. This General Comment elucidates the import of the right to
education for reporting on its implementation and the effect given to the State obligations
by the Governments. It refers to several UNESCO’s standard-setting instruments, notably
the Convention against Discrimination in Education (1960) and the World Declaration on
Education for All (1990). It elucidates the obligations of the State - the obligation to
respect, protect and fulfill.2 Just as the Dakar Framework for Action , this General
Comment provides for the right to receive free and compulsory primary education, which
should be made available to every one, and enjoins upon the State Parties to the Covenant
obligation for its progressive realization. This obligation has been interpreted to be of
continuing nature for moving as expeditiously and effectively as possible towards the
realization of this right and is of immediate effect.3

In the context of the Millennium Development goals, the General Comment No. 13 on
the right to education should be interpreted broadly. As the Informal Expert Consultation
on Monitoring the Right to Education organized by UNESCO in March 2001 suggested,
the follow-up to the World Education Forum should be linked to the implementation of
international and regional instruments. It underlined the need for (i) examining the bases
of the Dakar Framework for Action in both modern comparative constitutional law and
conventional international law, and (ii) establishing the relationship between the Dakar
Framework for Action and existing normative instruments as a continuity of existing law.
Moreover, it is expected that as a follow-up to the World Education Forum, the countries
should modernize their legislation. The General Comment would be useful in that respect
as well and especially for the more effective implementation of national legislation.

Elaborated just on the eve of the World Education Forum (April 2000), this General
Comment has enhanced validity in today’s context when more and more emphasis is
being placed on the rights-based approach. The EFA Global Monitoring Report 2002
entitled “Education for All: Is the World on Track?” which underlines the importance of
such an approach, states that “Where the right to education is guaranteed, people’s access
to and enjoyment of other rights is enhanced”.4 This is also the central idea underlying
the General Comment No. 13, which states at the outset that education not only as a right
in itself but also “indispensable for the exercise of other human rights”. In incorporating
rights-based approach in future annual monitoring reports on Education for All (EFA),
the General Comment No. 13 can be very useful.

1
For a commentary on and an analysis of the applications of this article, see Implementation of the
International Covenant on Economic, Social and Cultural Rights, General Comment No. 13 (twenty-first
session of the Committee on Economic, Social and Cultural Rights, 1999), The right to education (Art. 13
of the Covenant), Document E/C.12/1999/10, 8 December 1999.
2
Ibid. (para. 50)
3
Ibid. (paras 43-44)
4
EFA Global Monitoring Report 2002 “Education for All: is the World on Track?”, UNESCO Publishing,
2002 (p. 14)
3

The General Comment is also significant for ensuring the complementarity with the
United Nations and the work of treaty monitoring bodies, especially UNESCO’s
collaboration with the United Nations Committee on Economic, Social and Cultural
Rights (UNCESCR) in monitoring the implementation of UNESCO’s instruments in the
field of education. It would be helpful for encouraging Member States to respect their
obligations under international conventions and treaties.

It is with great pleasure that we commend this General Comment to Member States,
bearing in mind its importance for decision makers and Governments bodies having the
responsibility in preparing national educational policies as well as legislation. We hold
high expectation from Governments aimed at transforming the right to basic education
for all from an ideal to a living reality.

John Daniel Virginia B. Dandan

__________________________________ _________________________
Assistant Director-General for Education, Chairperson
UNESCO United Nations Committee on
Economic, Social and Cultural
Rights
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IMPLEMENTATION OF THE INTERNATIONAL COVENANT ON


ECONOMIC, SOCIAL AND CULTURAL RIGHTS

General Comment No. 13

The right to education (Article 13 of the Covenant)

(Twenty-first session, 1999) 1/

The right to education (art. 13)

1. Education is both a human right in itself and an indispensable means of realizing other
human rights. As an empowerment right, education is the primary vehicle by which
economically and socially marginalized adults and children can lift themselves out of
poverty and obtain the means to participate fully in their communities. Education has a
vital role in empowering women, safeguarding children from exploitative and hazardous
labour and sexual exploitation, promoting human rights and democracy, protecting the
environment, and controlling population growth. Increasingly, education is recognized as
one of the best financial investments States can make. But the importance of education is
not just practical: a well-educated, enlightened and active mind, able to wander freely and
widely, is one of the joys and rewards of human existence.

2. The International Covenant on Economic, Social and Cultural Rights (ICESCR)


devotes two articles to the right to education, articles 13 and 14. Article 13, the longest
provision in the Covenant, is the most wide-ranging and comprehensive article on the
right to education in international human rights law. The Committee has already adopted
General Comment 11 on article 14 (plans of action for primary education); General
Comment 11 and the present general comment are complementary and should be
considered together. The Committee is aware that for millions of people throughout the
world, the enjoyment of the right to education remains a distant goal. Moreover, in many
cases, this goal is becoming increasingly remote. The Committee is also conscious of the
formidable structural and other obstacles impeding the full implementation of article 13
in many States parties.

3. With a view to assisting States parties' implementation of the Covenant and the
fulfilment of their reporting obligations, this general comment focuses on the normative
content of article 13 (Part I, paras. 4-42), some of the obligations arising from it (Part II,
paras. 43-57), and some illustrative violations (Part II, paras. 58-59). Part III briefly
remarks upon the obligations of actors other than States parties. The general comment is
based upon the Committee's experience in examining States parties, reports over many
years.
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I. NORMATIVE CONTENT OF ARTICLE 13

Article 13 (1): Aims and objectives of education

4. States parties agree that all education, whether public or private, formal or non-formal,
shall be directed towards the aims and objectives identified in article 13 (1). The
Committee notes that these educational objectives reflect the fundamental purposes and
principles of the United Nations as enshrined in Articles 1 and 2 of the Charter. For the
most part, they are also found in article 26 (2) of the Universal Declaration of Human
Rights, although article 13 (1) adds to the Declaration in three respects: education shall
be directed to the human personality's "sense of dignity", it shall "enable all persons to
participate effectively in a free society", and it shall promote understanding among all
"ethnic" groups, as well as nations and racial and religious groups. Of those educational
objectives which are common to article 26 (2) of the Universal Declaration of Human
Rights and article 13 (1) of the Covenant, perhaps the most fundamental is that
"education shall be directed to the full development of the human personality".

5. The Committee notes that since the General Assembly adopted the Covenant in 1966,
other international instruments have further elaborated the objectives to which education
should be directed. Accordingly, the Committee takes the view that States parties are
required to ensure that education conforms to the aims and objectives identified in article
13 (1), as interpreted in the light of the World Declaration on Education for All (Jomtien,
Thailand, 1990) (art. 1), the Convention on the Rights of the Child (art. 29 (1)), the
Vienna Declaration and Programme of Action (Part I, para. 33 and Part II, para. 80), and
the Plan of Action for the United Nations Decade for Human Rights Education (para. 2).
While all these texts closely correspond to article 13 (1) of the Covenant, they also
include elements which are not expressly provided for in article 13 (1), such as specific
references to gender equality and respect for the environment. These new elements are
implicit in, and reflect a contemporary interpretation of article 13 (1). The Committee
obtains support for this point of view from the widespread endorsement that the
previously mentioned texts have received from all regions of the world. 2/

Article 13 (2): The right to receive an education - some general remarks

6. While the precise and appropriate application of the terms will depend upon the
conditions prevailing in a particular State party, education in all its forms and at all levels
shall exhibit the following interrelated and essential features: 3/

(a) Availability - functioning educational institutions and programmes have to be


available in sufficient quantity within the jurisdiction of the State party. What they
require to function depends upon numerous factors, including the developmental context
within which they operate; for example, all institutions and programmes are likely to
require buildings or other protection from the elements, sanitation facilities for both
sexes, safe drinking water, trained teachers receiving domestically competitive salaries,
teaching materials, and so on; while some will also require facilities such as a library,
computer facilities and information technology;
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(b) Accessibility - educational institutions and programmes have to be accessible to


everyone, without discrimination, within the jurisdiction of the State party. Accessibility
has three overlapping dimensions:

Non-discrimination - education must be accessible to all, especially the most vulnerable


groups, in law and fact, without discrimination on any of the prohibited grounds (see
paras. 31-37 on non-discrimination);

Physical accessibility - education has to be within safe physical reach, either by


attendance at some reasonably convenient geographic location (e.g. a neighbourhood
school) or via modern technology (e.g. access to a "distance learning" programme);

Economic accessibility - education has to be affordable to all. This dimension of


accessibility is subject to the differential wording of article 13 (2) in relation to primary,
secondary and higher education: whereas primary education shall be available "free to
all", States parties are required to progressively introduce free secondary and higher
education;

(c) Acceptability - the form and substance of education, including curricula and teaching
methods, have to be acceptable (e.g. relevant, culturally appropriate and of good quality)
to students and, in appropriate cases, parents; this is subject to the educational objectives
required by article 13 (1) and such minimum educational standards as may be approved
by the State (see art. 13 (3) and (4));

(d) Adaptability - education has to be flexible so it can adapt to the needs of changing
societies and communities and respond to the needs of students within their diverse social
and cultural settings.

7. When considering the appropriate application of these "interrelated and essential


features" the best interests of the student shall be a primary consideration.

Article 13 (2) (a): The right to primary education

8. Primary education includes the elements of availability, accessibility, acceptability and


adaptability which are common to education in all its forms and at all levels. 4/

9. The Committee obtains guidance on the proper interpretation of the term "primary
education" from the World Declaration on Education for All which states: "The main
delivery system for the basic education of children outside the family is primary
schooling. Primary education must be universal, ensure that the basic learning needs of
all children are satisfied, and take into account the culture, needs and opportunities of the
community" (art. 5). "Basic learning needs" are defined in article 1 of the World
Declaration. 5/

While primary education is not synonymous with basic education, there is a close
correspondence between the two. In this regard, the Committee endorses the position
taken by UNICEF: "Primary education is the most important component of basic
education." 6/
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10. As formulated in article 13 (2) (a), primary education has two distinctive features: it
is "compulsory" and "available free to all". For the Committee's observations on both
terms, see paragraphs 6 and 7 of General Comment 11 on article 14 of the Covenant.

Article 13 (2) (b): The right to secondary education

11. Secondary education includes the elements of availability, accessibility, acceptability


and adaptability which are common to education in all its forms and at all levels. 7/

12. While the content of secondary education will vary among States parties and over
time, it includes completion of basic education and consolidation of the foundations for
life-long learning and human development. It prepares students for vocational and higher
educational opportunities. 8/

Article 13 (2) (b) applies to secondary education "in its different forms", thereby
recognizing that secondary education demands flexible curricula and varied delivery
systems to respond to the needs of students in different social and cultural settings. The
Committee encourages "alternative" educational programmes, which parallel regular
secondary school systems.

13. According to article 13 (2) (b), secondary education "shall be made generally
available and accessible to all by every appropriate means, and in particular by the
progressive introduction of free education". The phrase "generally available" signifies,
firstly, that secondary education is not dependent on a student's apparent capacity or
ability and, secondly, that secondary education will be distributed throughout the State in
such a way that it is available on the same basis to all. For the Committee's interpretation
of "accessible", see paragraph 6 above. The phrase "every appropriate means" reinforces
the point that States parties should adopt varied and innovative approaches to the delivery
of secondary education in different social and cultural contexts.

14. "Progressive introduction of free education" means that while States must prioritize
the provision of free primary education, they also have an obligation to take concrete
steps towards achieving free secondary and higher education. For the Committee's
general observations on the meaning of the word "free", see paragraph 7 of General
Comment 11 on Article 14.

Technical and vocational education

15. Technical and vocational education (TVE) forms part of both the right to education
and the right to work (art. 6 (2)). Article 13 (2) (b) presents TVE as part of secondary
education, reflecting the particular importance of TVE at this level of education. Article 6
(2), however, does not refer to TVE in relation to a specific level of education; it
comprehends that TVE has a wider role, helping "to achieve steady economic, social and
cultural development and full and productive employment". Also, the Universal
Declaration of Human Rights states that "technical and professional education shall be
made generally available" (art. 26 (1)). Accordingly, the Committee takes the view that
TVE forms an integral element of all levels of education. 9/
8

16. An introduction to technology and to the world of work should not be confined to
specific TVE programmes but should be understood as a component of general
education. According to the UNESCO Convention on Technical and Vocational
Education (1989), TVE consists of "all forms and levels of the educational process
involving, in addition to general knowledge, the study of technologies and related
sciences and the acquisition of practical skills, know-how, attitudes and understanding
relating to occupations in the various sectors of economic and social life" (art. 1 (a)). This
view is also reflected in certain ILO Conventions. 10/ Understood in this way, the right to
TVE includes the following aspects:

(a) It enables students to acquire knowledge and skills which contribute to their personal
development, self-reliance and employability and enhances the productivity of their
families and communities, including the State party's economic and social development;

(b) It takes account of the educational, cultural and social background of the population
concerned; the skills, knowledge and levels of qualification needed in the various sectors
of the economy; and occupational health, safety and welfare;

(c) Provides retraining for adults whose current knowledge and skills have become
obsolete owing to technological, economic, employment, social or other changes;

(d) It consists of programmes which give students, especially those from developing
countries, the opportunity to receive TVE in other States, with a view to the appropriate
transfer and adaptation of technology;

(e) It consists, in the context of the Covenant's non-discrimination and equality


provisions, of programmes which promote the TVE of women, girls, out-of-school youth,
unemployed youth, the children of migrant workers, refugees, persons with disabilities
and other disadvantaged groups.

Article 13 (2) (c): The right to higher education

17. Higher education includes the elements of availability, accessibility, acceptability and
adaptability which are common to education in all its forms at all levels. 11/

18. While article 13 (2) (c) is formulated on the same lines as article 13 (2) (b), there are
three differences between the two provisions. Article 13 (2) (c) does not include a
reference to either education "in its different forms" or specifically to TVE. In the
Committee's opinion, these two omissions reflect only a difference of emphasis between
article 13 (2) (b) and (c). If higher education is to respond to the needs of students in
different social and cultural settings, it must have flexible curricula and varied delivery
systems, such as distance learning; in practice, therefore, both secondary and higher
education have to be available "in different forms". As for the lack of reference in article
13 (2) (c) to technical and vocational education, given article 6 (2) of the Covenant and
article 26 (1) of the Universal Declaration, TVE forms an integral component of all levels
of education, including higher education. 12/
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19. The third and most significant difference between article 13 (2) (b) and (c) is that
while secondary education "shall be made generally available and accessible to all",
higher education "shall be made equally accessible to all, on the basis of capacity".
According to article 13 (2) (c), higher education is not to be "generally available", but
only available "on the basis of capacity". The "capacity" of individuals should be
assessed by reference to all their relevant expertise and experience.

20. So far as the wording of article 13 (2) (b) and (c) is the same (e.g. "the progressive
introduction of free education"), see the previous comments on article 13 (2) (b).

Article 13 (2) (d): The right to fundamental education

21. Fundamental education includes the elements of availability, accessibility,


acceptability and adaptability which are common to education in all its forms and at all
levels. 13/

22. In general terms, fundamental education corresponds to basic education as set out in
the World Declaration on Education For All. 14/ By virtue of article 13 (2) (d), individuals
"who have not received or completed the whole period of their primary education" have a
right to fundamental education, or basic education as defined in the World Declaration on
Education For All.

23. Since everyone has the right to the satisfaction of their "basic learning needs" as
understood by the World Declaration, the right to fundamental education is not confined
to those "who have not received or completed the whole period of their primary
education". The right to fundamental education extends to all those who have not yet
satisfied their "basic learning needs".

24. It should be emphasized that enjoyment of the right to fundamental education is not
limited by age or gender; it extends to children, youth and adults, including older persons.
Fundamental education, therefore, is an integral component of adult education and life-
long learning. Because fundamental education is a right of all age groups, curricula and
delivery systems must be devised which are suitable for students of all ages.

Article 13 (2) (e): A school system; adequate fellowship system; material conditions of
teaching staff

25. The requirement that the "development of a system of schools at all levels shall be
actively pursued" means that a State party is obliged to have an overall developmental
strategy for its school system. The strategy must encompass schooling at all levels, but
the Covenant requires States parties to prioritize primary education (see para. 51).
"Actively pursued" suggests that the overall strategy should attract a degree of
governmental priority and, in any event, must be implemented with vigour.

26. The requirement that "an adequate fellowship system shall be established" should be
read with the Covenant's non-discrimination and equality provisions; the fellowship
system should enhance equality of educational access for individuals from disadvantaged
groups.
10

27. While the Covenant requires that "the material conditions of teaching staff shall be
continuously improved", in practice the general working conditions of teachers have
deteriorated, and reached unacceptably low levels, in many States parties in recent years.
Not only is this inconsistent with article 13 (2) (e), but it is also a major obstacle to the
full realization of students' right to education. The Committee also notes the relationship
between articles 13 (2) (e), 2 (2), 3 and 6-8 of the Covenant, including the right of
teachers to organize and bargain collectively; draws the attention of States parties to the
joint UNESCO-ILO Recommendation Concerning the Status of Teachers (1966) and the
UNESCO Recommendation Concerning the Status of Higher-Education Teaching
Personnel (1997); and urges States parties to report on measures they are taking to ensure
that all teaching staff enjoy the conditions and status commensurate with their role.

Article 13 (3) and (4): The right to educational freedom

28. Article 13 (3) has two elements, one of which is that States parties undertake to
respect the liberty of parents and guardians to ensure the religious and moral education of
their children in conformity with their own convictions. 15/

The Committee is of the view that this element of article 13 (3) permits public school
instruction in subjects such as the general history of religions and ethics if it is given in
an unbiased and objective way, respectful of the freedoms of opinion, conscience and
expression. It notes that public education that includes instruction in a particular religion
or belief is inconsistent with article 13 (3) unless provision is made for non-
discriminatory exemptions or alternatives that would accommodate the wishes of parents
and guardians.

29. The second element of article 13 (3) is the liberty of parents and guardians to choose
other than public schools for their children, provided the schools conform to "such
minimum educational standards as may be laid down or approved by the State". This has
to be read with the complementary provision, article 13 (4), which affirms "the liberty of
individuals and bodies to establish and direct educational institutions", provided the
institutions conform to the educational objectives set out in article 13 (1) and certain
minimum standards. These minimum standards may relate to issues such as admission,
curricula and the recognition of certificates. In their turn, these standards must be
consistent with the educational objectives set out in article 13 (1).

30. Under article 13 (4), everyone, including non-nationals, has the liberty to establish
and direct educational institutions. The liberty also extends to "bodies", i.e. legal persons
or entities. It includes the right to establish and direct all types of educational institutions,
including nurseries, universities and institutions for adult education. Given the principles
of non-discrimination, equal opportunity and effective participation in society for all, the
State has an obligation to ensure that the liberty set out in article 13 (4) does not lead to
extreme disparities of educational opportunity for some groups in society.
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Article 13: Special topics of broad application

Non-discrimination and equal treatment

31. The prohibition against discrimination enshrined in article 2 (2) of the Covenant is
subject to neither progressive realization nor the availability of resources; it applies fully
and immediately to all aspects of education and encompasses all internationally
prohibited grounds of discrimination. The Committee interprets articles 2 (2) and 3 in the
light of the UNESCO Convention against Discrimination in Education, the relevant
provisions of the Convention on the Elimination of All Forms of Discrimination against
Women, the International Convention on the Elimination of All Forms of Racial
Discrimination, the Convention on the Rights of the Child and the ILO Indigenous and
Tribal Peoples Convention, 1989 (Convention No. 169), and wishes to draw particular
attention to the following issues.

32. The adoption of temporary special measures intended to bring about de facto equality
for men and women and for disadvantaged groups is not a violation of the right to non-
discrimination with regard to education, so long as such measures do not lead to the
maintenance of unequal or separate standards for different groups, and provided they are
not continued after the objectives for which they were taken have been achieved.

33. In some circumstances, separate educational systems or institutions for groups


defined by the categories in article 2 (2) shall be deemed not to constitute a breach of the
Covenant. In this regard, the Committee affirms article 2 of the UNESCO Convention
against Discrimination in Education (1960). 16/

34. The Committee takes note of article 2 of the Convention on the Rights of the Child
and article 3 (e) of the UNESCO Convention against Discrimination in Education and
confirms that the principle of non-discrimination extends to all persons of school age
residing in the territory of a State party, including non-nationals, and irrespective of their
legal status.

35. Sharp disparities in spending policies that result in differing qualities of education for
persons residing in different geographic locations may constitute discrimination under the
Covenant.

36. The Committee affirms paragraph 35 of its General Comment 5, which addresses the
issue of persons with disabilities in the context of the right to education, and paragraphs
36-42 of its General Comment 6, which address the issue of older persons in relation to
articles 13-15 of the Covenant.

37. States parties must closely monitor education - including all relevant policies,
institutions, programmes, spending patterns and other practices - so as to identify and
take measures to redress any de facto discrimination. Educational data should be
disaggregated by the prohibited grounds of discrimination.
12

Academic freedom and institutional autonomy 17/

38. In the light of its examination of numerous States parties' reports, the Committee has
formed the view that the right to education can only be enjoyed if accompanied by the
academic freedom of staff and students. Accordingly, even though the issue is not
explicitly mentioned in article 13, it is appropriate and necessary for the Committee to
make some observations about academic freedom. The following remarks give particular
attention to institutions of higher education because, in the Committee's experience, staff
and students in higher education are especially vulnerable to political and other pressures
which undermine academic freedom. The Committee wishes to emphasize, however, that
staff and students throughout the education sector are entitled to academic freedom and
many of the following observations have general application.

39. Members of the academic community, individually or collectively, are free to pursue,
develop and transmit knowledge and ideas, through research, teaching, study, discussion,
documentation, production, creation or writing. Academic freedom includes the liberty of
individuals to express freely opinions about the institution or system in which they work,
to fulfil their functions without discrimination or fear of repression by the State or any
other actor, to participate in professional or representative academic bodies, and to enjoy
all the internationally recognized human rights applicable to other individuals in the same
jurisdiction. The enjoyment of academic freedom carries with it obligations, such as the
duty to respect the academic freedom of others, to ensure the fair discussion of contrary
views, and to treat all without discrimination on any of the prohibited grounds.

40. The enjoyment of academic freedom requires the autonomy of institutions of higher
education. Autonomy is that degree of self-governance necessary for effective decision-
making by institutions of higher education in relation to their academic work, standards,
management and related activities. Self-governance, however, must be consistent with
systems of public accountability, especially in respect of funding provided by the State.
Given the substantial public investments made in higher education, an appropriate
balance has to be struck between institutional autonomy and accountability. While there
is no single model, institutional arrangements should be fair, just and equitable, and as
transparent and participatory as possible.

Discipline in schools 18/

41. In the Committee's view, corporal punishment is inconsistent with the fundamental
guiding principle of international human rights law enshrined in the Preambles to the
Universal Declaration of Human Rights and both Covenants: the dignity of the
individual. 19/ Other aspects of school discipline may also be inconsistent with human
dignity, such as public humiliation. Nor should any form of discipline breach other rights
under the Covenant, such as the right to food. A State party is required to take measures
to ensure that discipline which is inconsistent with the Covenant does not occur in any
public or private educational institution within its jurisdiction. The Committee welcomes
initiatives taken by some States parties which actively encourage schools to introduce
"positive", non-violent approaches to school discipline.
13

Limitations on article 13

42. The Committee wishes to emphasize that the Covenant's limitations clause, article 4,
is primarily intended to be protective of the rights of individuals rather than permissive of
the imposition of limitations by the State. Consequently, a State party which closes a
university or other educational institution on grounds such as national security or the
preservation of public order has the burden of justifying such a serious measure in
relation to each of the elements identified in article 4.

II. STATES PARTIES' OBLIGATIONS AND VIOLATIONS

General legal obligations

43. While the Covenant provides for progressive realization and acknowledges the
constraints due to the limits of available resources, it also imposes on States parties
various obligations which are of immediate effect. 20/

States parties have immediate obligations in relation to the right to education, such as the
"guarantee" that the right "will be exercised without discrimination of any kind" (art. 2
(2)) and the obligation "to take steps" (art. 2 (1)) towards the full realization of article 13.
21/

Such steps must be "deliberate, concrete and targeted" towards the full realization of the
right to education.

44. The realization of the right to education over time, that is "progressively", should not
be interpreted as depriving States parties' obligations of all meaningful content.
Progressive realization means that States parties have a specific and continuing obligation
"to move as expeditiously and effectively as possible" towards the full realization of
article 13. 22/

45. There is a strong presumption of impermissibility of any retrogressive measures taken


in relation to the right to education, as well as other rights enunciated in the Covenant. If
any deliberately retrogressive measures are taken, the State party has the burden of
proving that they have been introduced after the most careful consideration of all
alternatives and that they are fully justified by reference to the totality of the rights
provided for in the Covenant and in the context of the full use of the State party's
maximum available resources. 23/

46. The right to education, like all human rights, imposes three types or levels of
obligations on States parties: the obligations to respect, protect and fulfil. In turn, the
obligation to fulfil incorporates both an obligation to facilitate and an obligation to
provide.

47. The obligation to respect requires States parties to avoid measures that hinder or
prevent the enjoyment of the right to education. The obligation to protect requires States
14

parties to take measures that prevent third parties from interfering with the enjoyment of
the right to education. The obligation to fulfil (facilitate) requires States to take positive
measures that enable and assist individuals and communities to enjoy the right to
education. Finally, States parties have an obligation to fulfil (provide) the right to
education. As a general rule, States parties are obliged to fulfil (provide) a specific right
in the Covenant when an individual or group is unable, for reasons beyond their control,
to realize the right themselves by the means at their disposal. However, the extent of this
obligation is always subject to the text of the Covenant.

48. In this respect, two features of article 13 require emphasis. First, it is clear that article
13 regards States as having principal responsibility for the direct provision of education
in most circumstances; States parties recognize, for example, that the "development of a
system of schools at all levels shall be actively pursued" (art. 13 (2) (e)). Secondly, given
the differential wording of article 13 (2) in relation to primary, secondary, higher and
fundamental education, the parameters of a State party's obligation to fulfil (provide) are
not the same for all levels of education. Accordingly, in light of the text of the Covenant,
States parties have an enhanced obligation to fulfil (provide) regarding the right to
education, but the extent of this obligation is not uniform for all levels of education. The
Committee observes that this interpretation of the obligation to fulfil (provide) in relation
to article 13 coincides with the law and practice of numerous States parties.

Specific legal obligations

49. States parties are required to ensure that curricula, for all levels of the educational
system, are directed to the objectives identified in article 13 (1). 24/ They are also obliged
to establish and maintain a transparent and effective system which monitors whether or
not education is, in fact, directed to the educational objectives set out in article 13 (1).

50. In relation to article 13 (2), States have obligations to respect, protect and fulfil each
of the "essential features" (availability, accessibility, acceptability, adaptability) of the
right to education. By way of illustration, a State must respect the availability of
education by not closing private schools; protect the accessibility of education by
ensuring that third parties, including parents and employers, do not stop girls from going
to school; fulfil (facilitate) the acceptability of education by taking positive measures to
ensure that education is culturally appropriate for minorities and indigenous peoples, and
of good quality for all; fulfil (provide) the adaptability of education by designing and
providing resources for curricula which reflect the contemporary needs of students in a
changing world; and fulfil (provide) the availability of education by actively developing a
system of schools, including building classrooms, delivering programmes, providing
teaching materials, training teachers and paying them domestically competitive salaries.

51. As already observed, the obligations of States parties in relation to primary,


secondary, higher and fundamental education are not identical. Given the wording of
article 13 (2), States parties are obliged to prioritize the introduction of compulsory, free
primary education. 25/ This interpretation of article 13 (2) is reinforced by the priority
accorded to primary education in article 14. The obligation to provide primary education
for all is an immediate duty of all States parties.
15

52. In relation to article 13 (2) (b)-(d), a State party has an immediate obligation "to take
steps" (art. 2 (1)) towards the realization of secondary, higher and fundamental education
for all those within its jurisdiction. At a minimum, the State party is required to adopt and
implement a national educational strategy which includes the provision of secondary,
higher and fundamental education in accordance with the Covenant. This strategy should
include mechanisms, such as indicators and benchmarks on the right to education, by
which progress can be closely monitored.

53. Under article 13 (2) (e), States parties are obliged to ensure that an educational
fellowship system is in place to assist disadvantaged groups. 26/ The obligation to pursue
actively the "development of a system of schools at all levels" reinforces the principal
responsibility of States parties to ensure the direct provision of the right to education in
most circumstances. 27/

54. States parties are obliged to establish "minimum educational standards" to which all
educational institutions established in accordance with article 13 (3) and (4) are required
to conform. They must also maintain a transparent and effective system to monitor such
standards. A State party has no obligation to fund institutions established in accordance
with article 13 (3) and (4); however, if a State elects to make a financial contribution to
private educational institutions, it must do so without discrimination on any of the
prohibited grounds.

55. States parties have an obligation to ensure that communities and families are not
dependent on child labour. The Committee especially affirms the importance of education
in eliminating child labour and the obligations set out in article 7 (2) of the Worst Forms
of Child Labour Convention, 1999 (Convention No. 182). 28/ Additionally, given article 2
(2), States parties are obliged to remove gender and other stereotyping which impedes the
educational access of girls, women and other disadvantaged groups.

56. In its General Comment 3, the Committee drew attention to the obligation of all
States parties to take steps, "individually and through international assistance and
cooperation, especially economic and technical", towards the full realization of the rights
recognized in the Covenant, such as the right to education. 29/ Articles 2 (1) and 23 of the
Covenant, Article 56 of the Charter of the United Nations, article 10 of the World
Declaration on Education for All, and Part I, paragraph 34 of the Vienna Declaration and
Programme of Action all reinforce the obligation of States parties in relation to the
provision of international assistance and cooperation for the full realization of the right to
education. In relation to the negotiation and ratification of international agreements,
States parties should take steps to ensure that these instruments do not adversely impact
upon the right to education. Similarly, States parties have an obligation to ensure that
their actions as members of international organizations, including international financial
institutions, take due account of the right to education.

57. In its General Comment 3, the Committee confirmed that States parties have "a
minimum core obligation to ensure the satisfaction of, at the very least, minimum
essential levels" of each of the rights enunciated in the Covenant, including "the most
basic forms of education". In the context of article 13, this core includes an obligation: to
ensure the right of access to public educational institutions and programmes on a non-
16

discriminatory basis; to ensure that education conforms to the objectives set out in article
13 (1); to provide primary education for all in accordance with article 13 (2) (a); to adopt
and implement a national educational strategy which includes provision for secondary,
higher and fundamental education; and to ensure free choice of education without
interference from the State or third parties, subject to conformity with "minimum
educational standards" (art. 13 (3) and (4)).

Violations

58. When the normative content of article 13 (Part I) is applied to the general and specific
obligations of States parties (Part II), a dynamic process is set in motion which facilitates
identification of violations of the right to education. Violations of article 13 may occur
through the direct action of States parties (acts of commission) or through their failure to
take steps required by the Covenant (acts of omission).

59. By way of illustration, violations of article 13 include: the introduction or failure to


repeal legislation which discriminates against individuals or groups, on any of the
prohibited grounds, in the field of education; the failure to take measures which address
de facto educational discrimination; the use of curricula inconsistent with the educational
objectives set out in article 13 (1); the failure to maintain a transparent and effective
system to monitor conformity with article 13 (1); the failure to introduce, as a matter of
priority, primary education which is compulsory and available free to all; the failure to
take "deliberate, concrete and targeted" measures towards the progressive realization of
secondary, higher and fundamental education in accordance with article 13 (2) (b)-(d);
the prohibition of private educational institutions; the failure to ensure private educational
institutions conform to the "minimum educational standards" required by article 13 (3)
and (4); the denial of academic freedom of staff and students; the closure of educational
institutions in times of political tension in non-conformity with article 4.

III. OBLIGATIONS OF ACTORS OTHER THAN STATES PARTIES

60. Given article 22 of the Covenant, the role of the United Nations agencies, including
at the country level through the United Nations Development Assistance Framework
(UNDAF), is of special importance in relation to the realization of article 13. Coordinated
efforts for the realization of the right to education should be maintained to improve
coherence and interaction among all the actors concerned, including the various
components of civil society. UNESCO, the United Nations Development Programme,
UNICEF, ILO, the World Bank, the regional development banks, the International
Monetary Fund and other relevant bodies within the United Nations system should
enhance their cooperation for the implementation of the right to education at the national
level, with due respect to their specific mandates, and building on their respective
expertise. In particular, the international financial institutions, notably the World Bank
and IMF, should pay greater attention to the protection of the right to education in their
lending policies, credit agreements, structural adjustment programmes and measures
taken in response to the debt crisis. 30/ When examining the reports of States parties, the
Committee will consider the effects of the assistance provided by all actors other than
States parties on the ability of States to meet their obligations under article 13. The
17

adoption of a human rights-based approach by United Nations specialized agencies,


programmes and bodies will greatly facilitate implementation of the right to education.

Notes

1/ Contained in document E/C.12/1999/10.

2/ The World Declaration on Education for All was adopted by 155 governmental
delegations; the Vienna Declaration and Programme of Action was adopted by 171
governmental delegations; the Convention on the Rights of the Child has been ratified or
acceded to by 191 States parties; the Plan of Action of the United Nations Decade for
Human Rights Education was adopted by a consensus resolution of the General
Assembly (49/184).

3/ This approach corresponds with the Committee's analytical framework adopted in


relation to the rights to adequate housing and food, as well as the work of the United
Nations Special Rapporteur on the right to education. In its General Comment 4, the
Committee identified a number of factors which bear upon the right to adequate housing,
including "availability", "affordability", "accessibility" and "cultural adequacy". In its
General Comment 12, the Committee identified elements of the right to adequate food,
such as "availability", "acceptability" and "accessibility". In her preliminary report to the
Commission on Human Rights, the Special Rapporteur on the right to education sets out
"four essential features that primary schools should exhibit, namely availability,
accessibility, acceptability and adaptability", (E/CN.4/1999/49, para. 50).

4/ See para. 6.

5/ The Declaration defines "basic learning needs" as: "essential learning tools (such as
literacy, oral expression, numeracy, and problem solving) and the basic learning content
(such as knowledge, skills, values, and attitudes) required by human beings to be able to
survive, to develop their full capacities, to live and work in dignity, to participate fully in
development, to improve the quality of their lives, to make informed decisions, and to
continue learning" (art. 1).

6/ Advocacy Kit, Basic Education 1999 (UNICEF), section 1, p. 1.

7/ See para. 6.

8/ See International Standard Classification of Education 1997, UNESCO, para. 52.

9/ A view also reflected in the Human Resources Development Convention 1975


(Convention No. 142) and the Social Policy (Basic Aims and Standards) Convention
1962 (Convention No. 117) of the International Labour Organization.

10/ See note 8.


18

11/ See para. 6.

12/ 11 See para. 15.

13/ 12 See para. 6.

14/ See para. 9.

15/ This replicates article 18 (4) of the International Covenant on Civil and Political
Rights (ICCPR) and also relates to the freedom to teach a religion or belief as stated in
article 18 (1) ICCPR. (See Human Rights Committee General Comment 22 on article 18
ICCPR, forty-eighth session, 1993.) The Human Rights Committee notes that the
fundamental character of article 18 ICCPR is reflected in the fact that this provision
cannot be derogated from, even in time of public emergency, as stated in article 4 (2) of
that Covenant.

16/ According to article 2:

"When permitted in a State, the following situations shall not be deemed to constitute
discrimination, within the meaning of article 1 of this Convention:

(a) The establishment or maintenance of separate educational systems or institutions for


pupils of the two sexes, if these systems or institutions offer equivalent access to
education, provide a teaching staff with qualifications of the same standard as well as
school premises and equipment of the same quality, and afford the opportunity to take the
same or equivalent courses of study;

(b) The establishment or maintenance, for religious or linguistic reasons, of separate


educational systems or institutions offering an education which is in keeping with the
wishes of the pupil's parents or legal guardians, if participation in such systems or
attendance at such institutions is optional and if the education provided conforms to such
standards as may be laid down or approved by the competent authorities, in particular for
education of the same level;

(c) The establishment or maintenance of private educational institutions, if the object of


the institutions is not to secure the exclusion of any group but to provide educational
facilities in addition to those provided by the public authorities, if the institutions are
conducted in accordance with that object, and if the education provided conforms with
such standards as may be laid down or approved by the competent authorities, in
particular for education of the same level."

17/ See UNESCO Recommendation Concerning the Status of Higher-Education


Teaching Personnel (1997).

18/ In formulating this paragraph, the Committee has taken note of the practice evolving
elsewhere in the international human rights system, such as the interpretation given by
the Committee on the Rights of the Child to article 28 (2) of the Convention on the
19

Rights of the Child, as well as the Human Rights Committee's interpretation of article 7
of ICCPR.

19/ The Committee notes that, although it is absent from article 26 (2) of the Declaration,
the drafters of ICESCR expressly included the dignity of the human personality as one of
the mandatory objectives to which all education is to be directed (art. 13 (1)).

20/ See the Committee's General Comment 3, para. 1.

21/ See the Committee's General Comment 3, para. 2.

22/ See the Committee's General Comment 3, para. 9.

23/ See the Committee's General Comment 3, para. 9.

24/ There are numerous resources to assist States parties in this regard, such as
UNESCO's Guidelines for Curriculum and Textbook Development in International
Education (ED/ECS/HCI). One of the objectives of article 13 (1) is to "strengthen the
respect of human rights and fundamental freedoms"; in this particular context, States
parties should examine the initiatives developed within the framework of the United
Nations Decade for Human Rights Education - especially instructive is the Plan of Action
for the Decade, adopted by the General Assembly in 1996, and the Guidelines for
National Plans of Action for Human Rights Education, developed by the Office of the
High Commissioner for Human Rights to assist States in responding to the United
Nations Decade for Human Rights Education.

25/ On the meaning of "compulsory" and "free", see paragraphs 6 and 7 of General
Comment 11 on article 14.

26/ In appropriate cases, such a fellowship system would be an especially appropriate


target for the international assistance and cooperation anticipated by article 2 (1).

27/ In the context of basic education, UNICEF has observed: "Only the State can pull
together all the components into a coherent but flexible education system". UNICEF, The
State of the World's Children, 1999, "The education revolution", p. 77.

28/ According to article 7 (2), "each Member shall, taking into account the importance of
education in eliminating child labour, take effective and time-bound measures to: (c)
ensure access to free basic education, and, wherever possible and appropriate, vocational
training, for all children removed from the worst forms of child labour" (ILO Convention
182, Worst Forms of Child Labour, 1999).

29/ See the Committee's General Comment 3, paras. 13-14.

30/ See the Committee's General Comment 2, para. 9.